Page:Federal Reporter, 1st Series, Volume 2.djvu/331

 324 FEDERAL SEPORTER. �estate, and this implied promise, I hold, would be the founda- tion of an action at law in belialf of the administrator de bonis non against the firm. �In Catherwood, Adm'r de bonis, v. Chaband, in 1 B. & C. 155, the plaintifif sustained an action on a bill of exchange indoi'sed to the former administrator, in payment of a debt due the estate. HoZro^/ti, J., in his opinion, say s: "The decisions in the old cases proceeded upon the principle that contracts made with an administrator were personal to him, and that he must sue upon them in his own right and not in his representative capacity. That principle has since been altered, and it has been ruled in several modern cases that upon such contracts an administrator may sue in his repre- sentative capacity." In the same case BaiZez/, J., says: "An administrator may sue in his representative character upon promises made to himself, when the money -will be assets when received. Now, if the administrator dies intestate, without having sued upon such a promise, the administrator de bonis non may sustain an action upon it, for he succeeds to ail the legal rights -which belonged to the administrator in his representative capacity. By this mode of proceeding the money received ia immediately applicable to the right fund, as assets of the first intestate, whereas, if the action had been brought by the personal representative of the first adminis- tratrix, it would in the first instance have become a part of his estate, and must afterwards have been transferred from that to the estate of the first intestate." �In Moseley v. Randall, 6 L. E. 2 B. 342, Cockburn, G. J., says: "If the promise was made to the original administra- trix, as administratrix, the proceeds of the action would be assets, and the administrator de bonis non is the proper per- son to sue." Sullivan, Adm'r de bonis, v. Holker, 15 Mass. 374, is to same effect. The entry on the books of Jordan & Blake of the credit to estate of E. M. York, of these sums, conclusively shows that the promise was to that estate, the loan was made by the estate, the firm thereby became the lebtor of the estate, and the debt still remains due from the ����